Open Source Licensing for Biotechnology: Safeguarding the Social Contract of Patent Law?
In Mariela Maidana-Eletti and Carly Toepke (eds), Recht und Gesellschaft (Zürich: Schulthess) 217-235 (2014)
Posted: 16 Oct 2017
Date Written: 2014
A common target of civil society groups and NGOs, patent law remains a misunderstood area of intellectual property law. In recent years, patent law has come to be the enemy of affordable healthcare and sustainable research and development. However, what most people fail to appreciate is that patent law is founded in a social contract that - in theory - ensures the correct balance between offering an incentive for people to invent and innovate, on the one hand, and allowing for access and others to invent off existing inventions, on the other hand. The latter is achieved through experimental use exceptions and compulsory licensing mechanisms. Tensions have particularly come to fore with the advent of biotechnology and, for example, the patentability of gene-related inventions. However, the problems do not necessarily relate to the grants themselves, but rather the inherent nature of the technology, which does not allow the social contract to be met. In any case, lobbying from large companies ensures that patent law favours owners over users. This has led to groups of inventors developing their own post-grant solutions to reclaim the balance. This chapter discusses the potential of patent pooling and open source licensing for re-establishing the social contract in the biotech industry. These examples are particularly interesting because they both depend on and fight against the patent grant.
Keywords: open source, biotechnology, patents
JEL Classification: K11, K33, K39
Suggested Citation: Suggested Citation